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Occupy Melbourne – the Rights of Councils to Use Local Laws and Crown Land Regulations to Protect Public Spaces from Damage by Protesters

11 October 2013

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Occupy Melbourne – the Rights of Councils to Use Local Laws and Crown Land Regulations to Protect Public Spaces from Damage by Protesters

Many of you will be familiar with the worldwide “Occupy” movements, which received substantial media coverage in both 2011 and 2012. Locally, the “Occupy Melbourne” movement also grabbed the media’s attention in mid-late 2011 in relation to the actions by the City of Melbourne and Victoria Police to enforce Local Laws and Crown Land (Reserves) Act Regulations. Last week the Federal Court ruled that neither the Council nor the Police had acted improperly.

What does this mean for Victorian Councils?

Councils can make and enforce Local Laws which impact upon political communication if those Local Laws are “reasonably appropriate and adapted to serve a legitimate purpose”. As an example, Councils can make and enforce Local Laws which require a permit for camping at a public place where a political protest is taking place, if as in this instance, the Local Laws are designed to:

Protect against environmental damage to public spaces such as gardens

Ensure that Council’s resources are used to best meet the needs of the local community or

Ensure that Council facilities are accessible and equitable for all in the local community.

Committees of Management pursuant to the Crown Land (Reserves) Act 1978 (Vic) can enforce Regulations which have the same effect.

A Council can reject a permit related to a political protest, if proper consideration is given to the relevant rights of protesters and the effect of the protest on the Council’s functions. Therefore, Councils can reject permit applications related to a political protest if there are valid reasons to do so, such as if the Council reasonably anticipates that damage may occur to a public space. Councils should provide written reasons when rejecting permits that relate to a political protest. Such written reasons are open to review by a Court. It is important to remember that the Local Law in this case did not require protesters to apply for a permit to protest, the permit system related to camping and placing other items on the gardens (which were incidentally associated with a protest).

Committees of Management pursuant to the Crown Land (Reserves) Act 1978 (Vic) can continue to rely upon regulations that were made more than 10 years ago.

Authorised officers should ensure that they consider all elements of a clause in a Local Law prior to enforcing it. In this case, the only criticism of the Council was that authorised officers were not instructed to give due consideration to the amenity of an area before issuing notices to remove non-camping related items.

Background facts

From November 2011 until Christmas of that year, a group of protesters identifying themselves as “Occupy Melbourne” protested in and occupied three public parks in the City of Melbourne: Treasury Gardens, Gordon Reserve and Flagstaff Gardens. During the course of their protests and occupation, the protesters erected tents and marquees for sleeping and cooking purposes, placed items associated with camping on the gardens and positioned protest signs on the gardens.

The City of Melbourne (“Council”) issued “Notices to Comply” to the protesters (approximately 150 Notices were issued in total). The Notices to Comply were issued under clauses 2.11 and 4.6 of the Local Law (see below). The effect of the Notices was that the goods could be confiscated unless the Notices were complied with within a specified time.

When the protest moved to Flagstaff Gardens, the Council (as a Committee of Management and Trustee of the gardens), commenced relying upon Regulations made under the Crown Land (Reserves) Act 1978 (Vic) (also referred to below). The effect of the Regulations was that goods could be confiscated and moved to an appointed area if they were brought into Flagstaff Gardens.

During the course of the protests, demonstrators made two applications for permits under the Local Law for permission to erect tents in Treasury Gardens. The permit applications were considered and rejected by the Council. Written reasons were provided. The Council ultimately rejected the applications based on considerations of:

The potential impact of camping on the gardens

Public health and hygiene considerations, including the limited public facilities in the gardens

Noise and amenity considerations, including potential obstruction of other uses of the gardens

The nature of the event and a consideration of the Council’s Sustainability Guidelines for Parks and Gardens.

(Permission was also sought for a permit to have hand-held protest signs. Council noted that the protesters did not need to obtain permission to have hand-held signs, or, indeed, to protest. It was the camping associated paraphernalia that required permission.) Proceedings were commenced against the Council, the State of Victoria and Victoria Police in the Federal Court of Australia in November 2011. The proceedings were commenced by a single protester who was said to be acting in a representative capacity on behalf of the “Occupy Melbourne” movement. Later, before the matter came before the Court in March 2012, a further protester was added as an applicant to the proceeding.

The essence of the protesters’ claim was:

Council had breached the Commonwealth Constitution, in particular, the (implied) rights to political communication and freedom of association in issuing the Notices to Comply and relying on the Regulations

Council had breached the Charter of Human Rights and Responsibilities Act 2006 (Vic), in particular, the rights to freedom of expression, peaceful assembly and freedom of association in issuing the Notices to Comply and relying on the Regulations

Not only was the issuing of the Notices, and the taking of action under the Regulations, unlawful under the Constitution and the Charter, but the statutory scheme that allowed the Local Laws and the Regulations to be made was unlawful

The Regulations have expired or “sunsetted” and were therefore invalid when the action was taken

The proper interpretation of clause 4.6 of the Local Law did not allow the Council to issue Notices to Comply in relation to items other than commercial type signs.

The proceeding was heard before His Honour Justice North on 8 days between March and May 2012. The decision was given on 1 October 2013.

At the hearing, the Court was provided with evidence from Council in relation to:

The use of the Local Law and Regulations, including the interpretation of the relevant clauses and the processes followed;

The permit applications that had been rejected;

The concerns Council had in relation to potential damage to the gardens by occupation of the gardens.

Judgement

Justice North found that:

Council did not breach the Constitution

Council did not breach the Charter

The statutory schemes under the Local Government Act and the Crown Land (Reserves) Act are lawful

The Regulations are valid

The proper interpretation of clause 4.6 of the Local Law allowed the Council to issue Notices to Comply in relation to items other than commercial type signs.

In making his findings, His Honour noted that it was necessary for the Council to consider the effect on the amenity of the gardens before issuing a Notice to Comply under clause 4.6 (having regard to the introductory wording to that clause. See box). That is, a Notice could not be issued in relation to an item until consideration had been given to whether that item was having a detrimental effect on the amenity of the gardens. His Honour found that, in relation to the three Notices to Comply issued to the second applicant under clause 4.6, the Council officer had not given proper consideration to the impact on the amenity of the gardens. In this small respect, the second applicant was successful in obtaining a declaration that those three Notices were invalid. The Council had not, in fact, removed any goods under those Notices, in any event.

Relevant legislation

Local law

Pursuant to s.111(1) of the Local Government Act 1989 (Vic), the Council made the Melbourne City Council Activities Local Law 2009 (the Local Law) which applies to Treasury and Flagstaff Gardens and the Gordon Reserve and relevantly includes:

2.11 Unless in accordance with a permit, a person must not camp in or on any public place in a vehicle, tent, caravan or any type of temporary or provisional form of accommodation.

Part 4

Introduction: This Part contains provisions which aim to enhance the appearance of streets and public places by controlling the placement of advertising signs in public places and on and between buildings and street art in, or within view from, a public place within the municipality and the placement of goods and the like in public places.

4.6 Unless: (a) in accordance with a permit; or(b) … a person must not place or erect a portable advertising sign or other thing in, on or over a public place or allow that to occur. [emphasis added]

A further clause of the Local Law (clause 14.13) permitted the Council to issue a Notice to Comply on a person who the authorised officer reasonably suspected to be in breach of the Local Law. The Notice could direct a person to stop the conduct which constituted the breach of the Local Law by a certain time, and to remove any item that constitutes a breach of the Local Law (clauses 14.15 and 14.16). A person served with a Notice to Comply is required to comply with directions given in the notice (clause 14.18). Failure to comply with the Notice is an offence (clause 14.1(c)). Where a person responsible for an item ignores a direction to remove it, the item may be confiscated and impounded (clause 14.21).

Regulations

Flagstaff Gardens are not only subject to the statutory power in the Local Government Act, but also to the statutory power contained in the Crown Land (Reserves) Act 1978 (Vic) (the Crown Land Reserves Act). Melbourne Parks and Gardens (Joint Trustee Reserves) Regulations (1994) (Vic) (the Regulations) which applied to Flagstaff Gardens, were made under the Crown Land Reserves Act. The Regulations included prohibitions on camping with tents and ancillary provisions, without written consent. It also permitted an appointed officer to remove property (such as tents), and store the property at an appropriate location. It was not necessary to issue a Notice or wait any specified period of time.